Know Your Rights - Moving Beyond Your Criminal Conviction

Hundreds of state and federal laws deny privileges and rights to individuals based on their criminal records, including public benefits, occupational licensing, and child custody. Additionally, many private employers and landlords have screening practices that severely limit opportunities for gainful employment and affordable housing for individuals with criminal records.

However, there are a handful of legal tools available to help overcome these barriers to reentry, including expunction, certificate of relief, Title VII, and the Fair Credit Reporting Act. The following is a brief overview of these tools.

Expunction

Expunction of a criminal record allows an individual to treat the incident as never having occurred in almost all situations. Opportunities for expunction in North Carolina are extremely limited. The vast majority of individuals with criminal convictions are not eligible. The following are the primary expunction opportunities available to individuals with criminal records in North Carolina:

A certificate of relief overrides most automatic civil disabilities triggered by a criminal record and protects employers from negligent hiring lawsuits. An Individual with a single misdemeanor or low-level felony conviction (or two if in the same session of court) is eligible for a certificate of relief 12-months after he completes his criminal sentence.

Title VII

According to recent EEOC guidance on enforcement of Title VII of the Civil Rights Act of 1964, a conviction should only be the basis for not hiring an applicant if the conviction is closely related to the job, considering:

the nature of the job

the nature and seriousness of the offense

the length of time since it occurred

Accordingly, an employer not hiring someone because of a criminal conviction that is not closely related to the job may violate Title VII.

In most circumstances, Title VII charges must be filed with the U.S. Equal Employment Opportunity Commission within 180 days of the alleged discriminatory act.

Fair Credit Reporting Act

The FCRA requires employers and landlords to get an applicant’s permission before asking a background screening company for a criminal history report. If their application is denied or any other adverse action is taken based on information in the report, the employer or landlord must inform the applicant of the adverse action as well as the company that supplied the criminal history report and his ability to dispute the accuracy of the report.

Complaints under the FCRA must be filed with the Fair Trade Commission.